SUKURI DIBYA Vs. HEMALATA PANDA

JUDGEMENT

(1.) APPELLANTS in this appeal were plaintiffs in a suit (O.S. No. 126/75 -1) in the Court of Munsif, Bhadrak. The suit was dismissed on merits by judgment dated 12.12.1977 passed by the learned trial Court against which they preferred Title Appeal No. 2/78 in the Court of Subordinate Judge, Bhadrak. The said appeal was posted to 3.4.1980 for hearing on which day the Advocate appearing for the appellants filed an application praying for an adjournment on the ground of illness of their Advocate of Cuttack, who had been engaged to argue the appeal. The appeal was adjourned to 7.5.1980 on which day the appellants also applied for adjournment on the very same stand. The court reluctantly allowed adjournment on payment of cost of Rs. 100/ - and the appeal was posted to 9.5.1980 for hearing. On that day also adjournment was applied on the ground of continuous illness of Advocate of Cuttack. The learned lower Appellate Court did not allow any further adjournment and dismissed the appeal for default of the appellants. The appellants thereafter filed an application under Order 41, Rule 19 of the Code of Civil Procedure, (hereinafter referred to as the 'Code') praying for restoration of the appeal which was registered as Misc. Case No. 116/80. The said Misc. Case was heard on merits and was dismissed by the subordinate Judge by his Order dated 14.4.1981. The said Court did not believe the plea of illness of the Advocate of Cuttack and held that the ground of illness of the Advocate is not sufficient to allow the prayer for restoration specially in view of the fact that were other Advocates on record appearing for the appellants. It is also held that the cost awarded for adjournment having not been paid by the appellants, they are not entitled to any indulgence of the Court. Against the aforesaid order passed in the Misc. Case the present appellants filed Misc. Appeal No. 113 of 1981 under Order 43, Rule 1 of the. Code in this Court. Notice of Admission and Hearing was issued to the respondents where after the appeal was taken up for hearing and final disposal. By order dated 1.2.1983 the appeal was dismissed by one of the learned single Judge by one of the learned single Judge of this Court on the ground that the plea of illness of the appellants' Counsel on the date fixed for hearing of the appeal having been disbelieved by the lower appellate Court, there are no grounds for interference. The present appellants have there -after filed this appeal under Clause 10 of the Letters Patent.

(2.) AT the hearing of this appeal, a preliminary objection was taken by the learned Counsel appearing for the respondents that this appeal is not maintainable in law and therefore, there is no necessity of going into the merits of the appeal. For the sake of convenience the aforesaid preliminary point was heard along with the merits of the appeal.

(3.) IN support of the contentions that no appeal lies under Clause 10 of the Letters Patent against the appellate judgment of the learned single Judge passed in an appeal under Order 43, Rule 1 of the Code and that the bar of further appeal against the said judgment under Section 104(2) of the Code, the learned Counsel appearing for the respondents mainly relied on the decision of the Hon'ble Supreme Court reported in AIR 1981 SC 1786 (Shah Babulal Khimji v. Jayaben D. Kania and another), and the decisions of some other High Courts where the same has been followed. Since the facts and circumstances dealt with and decided by the Hon'ble Supreme Court were different in some respects, we would proceed to examine the scope of Clause 10 of the Letters Patent with reference to the facts of this case and then proceed to the law as laid down by the Hon'ble Supreme Court in the aforesaid decision which, according to the learned Counsel for the appellants, has no application whatsoever in the facts of this case.